Employment Relations Act 2000 [ERA], Act No. 24 of 2000, dated 19 August 2000, consolidated version as at 12 December 2018. Date: 10 Oct 2017; view website »
Human Rights Act 1993, Act No. 82 of 1993, dated 10 August 1993, consolidated version as at 26 November 2018. Date: 10 Oct 2017; view website »
Parental Leave and Employment Protection Act 1987, Act No. 129 of 1987, dated 10 July 1987, consolidated version as at 1st July 2018. Date: 10 Oct 2017; view website »
Obligation to provide reasons to the employee: Yes
Any dismissed employee has the right to request a written statement indicating the reasons for the dismissal, within 60 days after the dismissal or within 60 days after the employee has become aware of the dismissal, whichever is the later. The employer shall provide such statement within 14 days after the request (art. 120 ERA).
Valid grounds (justified dismissal): any fair reasons
The ERA provides for a remedy to any employee who has been "unjustifiably dismissed" (see sec. 103 and 123 ERA).
NEW: The Employment Relations Amendment Act 2010 (No. 125) which entered into force on April 1, 2011 modified the provision on 'the test of justification' for dismissal, which now reads as follows: 103A Test of justification "(1) For the purposes of section 103(1)(a) and (b), the question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by applying the test in subsection (2). (2) The test is whether the employer's actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred. (3) In applying the test in subsection (2), the Authority or the court must consider: (a) whether, having regard to the resources available to the employer, the employer sufficiently investigated the allegations against the employee before dismissing or taking action against the employee; and (b) whether the employer raised the concerns that the employer had with the employee before dismissing or taking action against the employee; and (c) whether the employer gave the employee a reasonable opportunity to respond to the employer's concerns before dismissing or taking action against the employee; and (d) whether the employer genuinely considered the employee's explanation (if any) in relation to the allegations against the employee before dismissing or taking action against the employee. (4) In addition to the factors described in subsection (3), the Authority or the court may consider any other factors it thinks appropriate. (5) The Authority or the court must not determine a dismissal or an action to be unjustifiable under this section solely because of defects in the process followed by the employer if the defects were: (a) minor; and (b) did not result in the employee being treated unfairly."
[Prior to the 2010 amendment, sec. 103A read as follows: "the question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by considering whether the employer's actions, and how the employer acted, were what a fair and reasonable employer would have done in all the circumstances at the time the dismissal or action occurred."
Case-law has established that a dismissal will not be considered unjustifiable if 1) there was a substantive reason (= good cause) for the dismissal and 2) the dismissal was carried out in a manner that is procedurally fair. The substantive reasons that may justify a dismissal are normally restricted to: * redundancy for genuine commercial reasons; * reasons connected to the employee's lack of capacity for the work or performance on the job; or * serious misconduct by the employee.
Prohibited grounds: marital status; pregnancy; maternity leave; family responsibilities; filing a complaint against the employer; race; colour; sex; sexual orientation; religion; political opinion; nationality/national origin; age; trade union membership and activities; disabilities; parental leave; participation in a lawful strike; raising occupational health and security concerns; ethnic origin
See sec. 104 ERA prohibiting discrimination in employment which includes dismissal:
* on the prohibited grounds listed in sec. 105 ERA (sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status, sexual orientation). Discrimination on such grounds is also prohibited under the Human Rights Act, 1993;
* on the grounds of involvement in the activities of a union. The statutory definition of involvement union activity includes trade union membership and also a number of grounds such as participation in a lawful strike, filing a complaint or participation in proceedings against an employer, submitting a personal grievance against an employer, taking an employment relations education leave;(sec. 107 ERA)
* on grounds of pregnancy and of a woman's state of health during pregnancy, and on grounds that a male or female employee intends to take parental leave or to assume the care of a child with a view of adoption. Dismissal of employees is also prohibited during parental leave and during 26 weeks thereafter. The dismissal of a pregnant employee is permitted if her state of health is materially affected by causes which are not related to pregnancy (sec. 49 of the Parental Leave and Employment Protection Act 1987);
* Another prohibited ground is listed in sec. 110A (1) (a), (2) and (6), in connection with sec. 89 of the Health and Safety at Work Act (2015), which prohibits the dismissal of a worker, who acts as, has been, or proposes to be a safety representative or a member of a health and safety committee or of a worker, who raises a health and safety issue or is taking, has taken, encourages requests or organizes to take to seek compliance by any person with a duty under the Health and Safety at Work Act.
Furthermore, Sec. 110A (1) (a) and (2) and sec. 89, 83, 84 Health and Safety at Work Act prohibit the dismissal of an employee, based on the employee's refusal to perform work likely to cause serious harm, or the refusal to perform work, which has been declared unsafe by a safety representative
Workers enjoying special protection: pregnant women and/or women on maternity leave; workers with family responsibilities
As already stated, dismissal is prohibited on grounds of pregnancy and of a woman's state of health during pregnancy, and on grounds that a male or female employee intends to take parental leave or to assume the care of a child with a view of adoption. However, the employer is allowed to dismiss an employee for a substantial reason which is not related to the above-mentioned grounds.
There is a special protection against dismissal of a male or a female employee during parental leave and during 26 weeks thereafter: it is prohibited for the employer to dismiss them. However, this prohibition is not absolute: the dismissal will be lawful if the employer proves that he/she terminated the employee's employment on account of a redundancy situation of such nature that there was no prospect of the employer being able to appoint the employee to a position which was vacant and which was substantially similar to the position held by the employee at the beginning of the employee's parental leave. (See sec. 49-52 of the Parental Leave and Employment Protection Act 1987)